Thompson v Thompson - [2015] NZHC 2241

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2012-404-7668 [2015] NZHC 2241

BETWEEN
CHRISTINE HAMILTON THOMPSON

Plaintiff

AND

MICHAEL LEITH THOMPSON First Defendant

BRUCE KENNETH DELL Second Defendant

MICHAEL LEITH THOMPSON, DEAN ALAN ELLWOOD and BRUCE KENNETH DELL

Third Defendants

Hearing: (on the papers)

Counsel

S Ambler for plaintiff

D A T Chambers QC for first defendant P Fee and L Fraser for second defendant P Tesiram for third defendants

Judgment:

17 September 2015

JUDGMENT OF ANDREWS J [Costs]

This judgment was delivered by me on 17 September 2015 at 11 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

CHRISTINE HAMILTON THOMPSON v MICHAEL LEITH THOMPSON [2015] NZHC 2241 [17 September
2015]

Introduction

[1] The plaintiff discontinued this proceeding on 1 July 2015. The first and second defendants seek costs on the discontinuance, pursuant to r 15.23: the first defendant in the sum of $7960 together with disbursements of $608.80 and the second defendant in the sum of $6567 together with disbursements of $608.80.

[2] The plaintiff contends that costs should lie where they fall or, if an order is made that the plaintiff is to pay costs, only one order should be made and it should be for a reduced amount.

Background

[3] After a marriage of some 31 years the plaintiff and the first defendant separated in 2002. The marriage was dissolved in 2005. In 2006, the plaintiff issued proceedings in the Family Court seeking division of relationship property. The focus of the Family Court proceeding was a payment of $8 million made to the first defendant for a restraint of trade covenant upon the sale of a business. The plaintiff contended that the payment was relationship property and the first defendant contended that it was not.

[4] This proceeding was issued by the plaintiff on 20 December 2012. Again, the focus of the proceeding is the restraint of trade payment. The statement of claim referred to the Family Court proceeding, and recorded that a reserved judgment was awaited. The plaintiff alleged that the first, second and third defendants were in breach of fiduciary duties owed to her in respect of the sale of the business and the restraint of trade covenant, and that the second defendant was also in breach of a duty of care.

[5] Statements of defence were filed on 4 March 2013 (first defendant), 8 March

2013 (third defendants) and 25 March 2013 (second defendant).

[6] The first case management conference was scheduled for 20 June 2013. By a consent memorandum of counsel dated 11 June 2013, counsel for all parties noted that the Family Court decision had been delivered on 24 April 2013, and the plaintiff

had indicated she would appeal. Counsel sought a stay of the proceeding pending expiry of the appeal period, determination of any appeal (or further appeal), order of the High Court, or agreement between the parties. Cooper J did not grant a stay, and required counsel to file a further memorandum.

[7]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Thompson v Thompson

Details

AGLC: Thompson v Thompson [2015] NZHC 2241
Case: [2015] NZHC 2241
Decision Date: 17 September 2015

CaseChat Overview and Summary

In Thompson v Thompson, the plaintiff Christine Thompson sought to discontinue her proceedings against the defendants following a series of judgments in her favour in the Family Court and the Supreme Court. The first and second defendants sought costs on the discontinuance of the proceeding. The first defendant sought costs in the sum of $7960 plus disbursements of $608.80, and the second defendant sought costs in the sum of $6567 plus disbursements of $608.80. The plaintiff argued that if costs were to be awarded, they should lie where they fall or, if an order was made that she was to pay costs, only one order should be made and it should be for a reduced amount. She also argued that the defendants had taken an unnecessarily aggressive approach by filing strike-out applications in response to her request for an adjournment.

The court considered the principles applicable to costs on a discontinuance, and noted that while the presumption is in favour of an award of costs to the defendant, this presumption may be displaced if the Court finds there are circumstances which make it just and equitable that it should not apply. The Court held that a successful party will not be penalised for pursuing parallel proceedings for a legitimate purpose, provided that party acts reasonably in the proceedings. The Court found that Ms Thompson’s claims in this Court were reasonably necessary to preserve her position with respect to the Limitation Act 2010, and that once her position was preserved by the filing of a statement of claim, she acted reasonably in allowing the proceeding to be adjourned until the Family Court proceeding was at an end.

However, the Court made a distinction between the costs claims by the first and second defendants. The Court found that there was no basis for requiring Ms Thompson to pay costs to the first defendant, as the analogy between the present case and cases where a plaintiff claims relief under more than one cause of action in a single proceeding was not as close as the plaintiff submitted. However, the Court held that the plaintiff should pay costs to the second defendant in respect of all steps prior to the strike-out application, in the sum of $5,373, together with the filing fee for the statement of defence ($108.80). The Court found that the plaintiff should not pay costs in relation to the second defendant’s application to strike out, as it was aggressive, unnecessary, and unreasonable. In relation to that application, costs were to lie where they fell. Except as specified, costs were to lie where they fell.

Orders